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with respect to citizens of the individual states. In a word, the measure of privilege and the measure of satisfaction for its denial were perfectly understood and accepted. 79

It soon became apparent, however, that the California Land Law of 1913 was inadequate and that it was being flagrantly evaded with the natural result that a more comprehensive and carefully drawn initiative measure was presented to the people of the state and passed by an overwhelming majority., The situation in the state of Washington being in all essential respects identical with that existing in California, a somewhat similar law based upon Section 33 of Article II of the Constitution of the State, prohibiting the ownership of lands by aliens other than those who in good faith declared their intention to become citizens of the United States, was enacted in 1921. A suit was brought by the Terraces. citizens of the United States and of Washington, to restrain Attorney General Thompson of the State of Washington from enforcing this statute on the ground that it was in conflict with the due process and equal protection clauses of the Fourteenth Amendment to the Constitution of the United States, and also on the ground that it was in violation of the treaty between the United States and Japan. The act provides in substance " that any such alien shall not own, take, have, or hold the legal or equitable title. or right to any benefit of any land as defined in the act, and that land conveyed to or for the use of aliens in violation of the state Constitution or of the act shall thereby be forfeited to the state. And it is made a gross misdemeanor, punishable by fine or imprisonment or both, knowingly to transfer land or the right to the control, possession, or use of land to such an alien. It is also made a gross misdemeanor for any such alien having title to such land or the control, possession or use thereof, to refuse to disclose to the Attorney General or the prosecuting attorney the nature and extent of his interest in the land. The Attorney General and the prosecuting attorneys of the several counties are charged with the enforcement of the act." 80

Mr. Justice Butler after reviewing the facts and dealing with some phases of the case not pertinent to matters we have under consideration, said:

By the common law, an alien can not acquire real property by operation of law, but may take it by act of the grantor, and hold it until office found; that is until the fact of alienage is authoritatively established by a public officer, upon an inquest held at the instance of the government.

State legislation applying alike and equally to all aliens, withholding from them the right to own land, can not be said to be capricious, or to amount to an arbitrary deprivation of liberty or property, or to transgress the due process clause.

This brings us to a consideration of appellants' contention that the act contravenes the equal protection clause. That clause secures equal protection to all in the enjoyment of their rights under like circumstances. In re Kemmler, Supra; Giozza v. Tiernan, 148 U. S. 657, 662. But this does not forbid every distinction in the law of a State between citizens and aliens resident therein. In Truax v. Corrigan, 257 U. S. 312, this Court said (p. 337):

“ In adjusting legislation to the need of the people of a state, the legislature has a wide discretion and it may be fully conceded that perfect uniformity of treatment of all persons is neither practical nor desirable, that classification of

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Federal

79 Letter of William Jennings Bryan to Viscount Chinda, July 16, 1913. Reporter, vol. 274, pages 844 and 845, Terrace v. Thompson. 80 See Appendix D of this paper.

persons is constantly necessary.

Classification is the most inveterate of our reasoning processes. We can scarcely think or speak without consciously or unconsciously exercising it. It must therefore obtain in and determine legislation ; but it must regard real resemblances and real differences between things, and persons, and class them in accordance with their pertinence to the purpose in hand.”

The rights, privileges and duties of aliens differ widely from those of citizens; and those of alien declarants differ substantially from those of nondeclarants. Formerly in many of the states the right to vote and hold office was extended to declarants, and many important offices have been held by them. But these rights have not been granted to nondeclarants. By various acts of Congress, declarants have been made liable to military duty, but no act has imposed that duty on nondeclarants. The fourth paragraph of Article I of the treaty invoked by the appellants, provides that the citizens or subjects of each shall be exempt in the territories of the other from compulsory military service either on land or sea, in the regular forces, or in the national guard, or in the militia ; also from all contributions imposed in lieu of personal service, and from all forced loans or military exactions or contributions. The aliens formerly declared bona fide intention to renounce forever all allegiance and fidelity to the sovereignty to which he lately has been a subject, and to become a citizen of the United States and permanently to reside therein markedly distinguishes him from an ineligible alien or an eligible alien who has not so declared.

By the statute in question all aliens who have not in good faith declared intention to become citizens of the United States, as specified in Section I (a) are called “aliens” and it is provided that they shall not " own “land," as defined in clauses (d) and (b) of Section I, respectively. The class so created includes all, but is not limited to aliens not eligible to become citizens. Eligible aliens who have not declared their intention to become citizens are included, and the act provides that unless declarants be admitted to citizenship within seven years after the declaration is made, bad faith will be presumed. This leaves be cl permitted so to own land made up of citizens and aliens who may, and who intend to, become citizens, and who in good faith have made the declaration required by the immigration laws. The inclusion of good faith declarants in the same class with citizens does not unjustly discriminate against aliens who are ineligible, or against eligible aliens who have failed to declare their intention. The classification is based on eligibility and on purpose to naturalize. Eligible aliens are free white persons and persons of African nativity or descent. Congress is not trammeled, and it may grant or withhold the privilege of naturalization upon any ground or without any reason, as it sees fit. But it is not to be supposed that its acts defining eligibility are arbitrary or unsupported by reasonable considerations of public policy. The state properly may assume that the considerations upon which Congress made such classification are substantial and reasonable. Generally speaking, the natives of European countries are eligible. Japanese, Chinese, and Malays are not. Appellant's contention that the state act discriminates arbitrarily against Nakatsuka and other ineligible aliens because of their race and color is without foundation. All persons of whatever color or race who have not declared their intention in good faith to become citizens are prohibited from so owning agricultural lands. Two classes of aliens inevitably result from the Naturalization Laws—those who may and those who may not become citizens. The rule established by Congress on this subject, in and of itself, furnishes a reasonable basis for classification in a state law withholding from aliens the privilege of land ownership as defined in the act. We agree with the Court below (274 Fed. 841, 849) that,

“ It is obvious that one who is not a citizen and can not become one lacks an interest in, and the power to effectually work for the welfare of, the State, and, so lacking, the State may rightfully deny him the right to own and lease real estate within its boundaries. If one incapable of citizenship may lease or own real estate, it is within the realm of possibility that every foot of land within the state might pass to the ownership or possession of noncitizens.”

And we think it is clearly within the power of the State to include nondeclarants eligible aliens and ineligible aliens in the same prohibited class. Reasons supporting discrimination against aliens who may, but who will not naturalize, are obvious.

3. The State act, in our opinion, is not in conflict with the treaty between the United States and Japan. The preamble declares it to be “a treaty of commerce and navigation," and indicates that it was entered into for the purpose of establishing the rules to govern commercial intercourse between the countries.

The only provision that relates to owning or leasing land is in the first paragraph of Article I, which is as follows:

“ The citizens or subjects of each of the High Contracting Parties shall have liberty to enter, travel and reside in the territories of the other, to carry on trade, wholesale and retail, to own or lease and occupy houses, manufactories, warehouses and shops, to employ agents of their choice, to lease land for residential and commercial purposes, and generally to do anything incident to or necessary for trade upon the same terms as native citizens or subjects, submitting themselves to the laws and regulations there established.”

For the purpose of bringing Nakatsuka within the protection of the treaty, the amended complaint alleges that, in addition to being a capable farmer, he is engaged in the business of trading, wholesale and retail, in farm products, and shipping the same in intrastate, interstate, and foreign commerce, and, instead of purchasing such farm products, he has produced, and desires to continue to produce, his own farm products, for the purpose of selling them in such wholesale and retail trade; and if he is prevented from leasing land for the purpose of producing farm products for such trade, he will be prevented from engaging in trade and the incidents to trade, as he is authorized to do under the treaty.

To prevail on this point, appellants must show conflict between the state act and the treaty. Each state, in the absence of any treaty provision conferring the right, may enact laws prohibiting aliens from owning land within its borders. Unless the right to own or lease land is given by the treaty, no question of conflict can arise. We think that the treaty not only contains no provision giving Japanese the right to own or lease land for agricultural purposes, but, when viewed in the light of the negotiations leading up to its consummation, the language shows that the high contracting parties respectively intended to withhold a treaty grant of that right to the citizens or subjects of either in the territories of the other. The right to " carry on trade" or “to own or lease and occupy houses, manufactories, warehouses, and shops “ to lease land for residential and commercial purposes,” or “to do anything incident to or necessary for trade," can not be said to include the right to own or lease, or to have any title to or interest in, land for agricultural purposes. The enumeration of rights to own or lease for other specified purposes impliedly negatives the right to own or lease land for these purposes. A careful reading. of the treaty suffices, in our opinion, to negative the claim asserted by appellants that it conflicts with the state act.

But, if the language left the meaning of its provisions doubtful or obscure, the circumstances of the making of the treaty, as set forth in the opinion of the District Court (Supra, 844, 845), would resolve all doubts against the appellants' contention. The letter of Secretary of State Bryan to Viscount Chinda, July 16, 1913, shows that, in accordance with the desire of Japan, the right to own land was not conferred. And it appears that the right to lease land for other than residential and commercial purposes was deliberately withheld by substituting the words of the treaty, “ to lease land for residential and commercial purposes for a more comprehensive clause contained in an earlier draft of the instrument, namely, “to lease land for residential, commercial, industrial, manufacturing, and other lawful purposes

The case of Porterfield v. Webb, Attorney General of the State of California, was brought on similar grounds to that of Terrace v. Thompson, which has been summarized above, the only material distinction being that in the Washington case, the classes of persons prohibited from owning land were broader in their scope; in California, the only element denied the privilege of owning land being aliens ineligible to citizenship, a circumstance which in no way, in the opinion of the Court, impaired the constitutionality of the statute.

or

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* " 81

81 See Appendix D of this paper for whole decision.

83

We may conclude from a consideration of the decisions, which have been summarized, or from which extracts have been quoted, in the preceding paragraphs, that the provisions of Section 2169 of the Revised Statutes, excluding all persons not being aliens who are free white persons or persons of African nativity or African descent, apply specifically to persons of the Japanese race, not born within the territory of the United States, and that the provisions of this section form a sane and legal basis for the exclusion of any person not comprised within the classes specifically referred to in Section 2169, from the ownership of land in any state which may see fit to so provide by statute. It, therefore, only remains for us to consider briefly the aspect of this question from the standpoint of international law, as distinct from the interpretation of Section 2169 by our domestic tribunals in so far as they relate to naturalization and the ownership of land.

It is incontestable that every state has the right to determine the conditions under which persons commence or cease to belong to the people of the country which that state represents.82 Upon this point Oppenheim, the well known English authority, has this to say:

It is not for International but for Municipal Law to determine who is and who is not to be considered a subject. And therefore it matters not, as far as the Law of Nations is concerned, that Municipal Laws may distinguish between different kinds of subjects—for instance, those who enjoy full political rights and are on that account named citizens, and those who are less favoured and are on that account not named citizens.8

This is a right too generally recognized to need discussion. It is inherent in the sovereignty of a state and an essential element of its independence. In the same way, Oppenheim says:

It must be emphasized that, apart from general conventional arrangements, as, for instance, those concerning navigation on international rivers, and apart from special treaties of commerce, frindship, and the like, no State can claim the right for its subjects to enter into and reside on the territory of a foreign state. The reception of aliens is a matter of discretion, and every State is by reason of its territorial supremacy competent to exclude aliens from the whole or any part of its territory.

The American people will do well to bear in mind that the government of Japan has availed itself of the right hereinbefore set forth in her own defense. Faced with a migration of Asiatic people, the government of Japan has refused admission to her own subjects inhabiting the dependencies of that Empire on the mainland of Asia, and in the Island of Formosa, as well as denying admission to the people of Siam, Malaya, Java and Hindustan.85 In the month of August last, the Imperial Government failed to heed the seventh protest in two years, from the government of a kindred people, China, respecting discrimination against its nationals and their exclusion from the islands of Japan. We recognize the justice both in law, and as a matter of policy, of the attitude assumed by our friends across the Pacific, because it is essential to the maintenance of their economic standards and national integrity. On precisely the same

84

82 Cf.

Le Droit International," Charles Calvo, Vol. IV, fifth edition, section 541, page 25 ; section 580, page 72, and section 649, page 141.

83 International Law, Oppenheim, Volume I, section 293, pages 369-370. 84 International Law, Oppenheim, Volume 1, section 314, page 391.

86 Cf. Remarks of Senator Shortridge, Congressional Record, April 14, 1924, pages 6497-6498.

basis, we uphold the right to exclude the Japanese from the Pacific coast, or from any part of our territory. No question of national equality is involved. The recognition of Japan as an equal among the civilized states of the world is a matter of history. Her position as a great power is incontestable. If equality among races is measurable, we gladly concede it. Neither of these questions are in fact involved in our controversy respecting the admission of Japanese immigrants to settle upon our soil, although both of them are habitually raised in communications from the Imperial Government. The terms national and racial equality as used by the representatives of Japan are a challenge of the right of every sovereign state to control immigration into its territory in accordance with the public welfare. “The right of self-preservation," says Phillimore, " is the first law of nations, as it is of individuals. A society which is not in a condition to repel aggression from without, is wanting in its principal duty to the members of which it is composed, and to the chief end of its institutions. All means which do not affect the independence of other nations are lawful to this end. No nation has a right to prescribe to another what these means shall be, or to require any account of her conduct in this respect." 86 It is upon this proposition that the Congress of the United States has taken a proper and necessary stand, none too soon, to meet the menace of alien domination.

V. THE IMMIGRATION ACT OF 1924 87

All 24

There can be no doubt that the considerations which have been set forth in the course of this discussion of our relations with Japan in respect to the immigration problem, constitute the basis for the embodiment in the Immigration Act of 1924, of Section 13, subsection (c), which reads as follows:

(c) No alien ineligible to citizenship shall be admitted to the United States unless such alien (1) is admissible as a non-quota immigrant under the provisions of subdivision (b), (d), or (e) of section 4, or (2) is the wife, or the unmarried child under 18 years of age, of an immigrant admissible under such subdivision (d), and is accompanying or following to join him, or (3) is not an immigrant as defined in section 3.

When the exceptions to the exclusion provisions of this section are carefully examined, it will be observed that the substance and clear intent of the Gentlemen's Agreement are embodied in the statute; that is to say

(1) an alien ineligible for citizenship previously lawfully admitted to the United States returning from a temporary visit abroad may be admitted; (2) an immigrant ineligible for citizenship who continuously, for at least two years immediately preceding the time of his application for admission to the United States, has been and is seeking to enter the United States solely for the purpose of carrying on the vocation of minister of any religious denomination, or professor of a college, academy, seminary or university, and his wi ad his unmarried children under 18 years of age if accompanying or following to join him, may be admitted; or (3) an immigrant ineligible for citizenship who is a bona fide student at least 15 years of age and seeks to enter the United States solely for the purpose of study at an accredited school, college, academy,

86 Phillimore's International Law, Volume I, second edition, Section CCXI, page 252; · Digest of International Law, Moore, Volume 4, page 155 ; Cf. " Le Droit International, Charles Calvo, Volume I, fifth edition, section 208, and first clause of section 209. nages 352-353.

87 See Appendix F.

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